Brown's switch on Prop. 8 reflects times

the same-sex marriage debate As governor in '77, he signed bill preventing gay nuptials

Carla Marinucci, Chronicle Political Writer

Published
4:00 am PST, Friday, January 9, 2009

Photo: Rich Pedroncelli, Associated Press

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In this file photo from Nov. 5, 2008. Attorney General Jerry Brown discusses how his office will handle the passage of Proposition 8 during a news conference in Sacramento, Calif.

In this file photo from Nov. 5, 2008. Attorney General Jerry Brown discusses how his office will handle the passage of Proposition 8 during a news conference in Sacramento, Calif.

Photo: Rich Pedroncelli, Associated Press

Brown's switch on Prop. 8 reflects times

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California Attorney General Jerry Brown has become a hero to gay rights advocates - and a potential leader in the 2010 Democratic gubernatorial field - with his recent controversial decision to mount a legal challenge to overturn Proposition 8, the initiative approved by voters that banned-same sex marriage in California.

But few remember that 32 years ago, when Brown was governor of California, he played a crucial role on the same issue - he signed the landmark bill that changed the state's definition of marriage from a contract between two persons to one specifically between a man and a woman.

At the time, proponents of the bill praised it as one that would "outlaw marriages between homosexuals."

The author of that bill, former Republican Assemblyman Bruce Nestande of Orange County, told The Chronicle this week that he wrote AB607 to specifically limit marriage to being between a man and a woman. He won support from conservatives such as state Sen. John Briggs of Fullerton, who would later author the notorious but unsuccessful Briggs Initiative that attempted to ban gays from working in public schools. Briggs carried Nestande's bill in the Senate and said it would "restore some sense of morality to the state of California."

Brown said Thursday that his decision to sign the bill, without comment, was largely technical - and "totally appropriate" for the time. He said he was simply clarifying "legislative intent" of the era, in which marriage was assumed to be between man and woman.

California code, he said, had been rewritten to be gender-neutral in the Reagan era, though "no one (of the same sex) had ever gotten married." Still, "Same-sex marriage was not the law of California prior to my signing the bill."

Major change reflected

Sheila Kuehl, the former California senator who became the first openly gay state legislator, said Brown's actions do reflect the enormous change that has occurred on an issue now at the epicenter of a national controversy.

In 1977, "I don't know that many people in (Sacramento) gave much thought to gay marriage - and that includes the governor," she said. "It is always reprehensible when any elected person, casually or otherwise, takes away rights ... but frankly, I don't think (in those days) it was seen as anything other than, 'Well, that's the way things are.' "

Veteran journalist Marty Nolan, who covered Brown for the Boston Globe in the 1970s and 1980s, said the defense represents Brown's longtime political mantra. "He's got a six-word answer - 'that was then, this is now,' " Nolan laughed. "It's an all-purpose shield."

With Brown leading the field of potential Democratic gubernatorial contenders, the issue underscores a potential dilemma for one of California's most visible and experienced elected officials.

Even as Brown seeks to introduce himself to a new generation of voters - many of whom weren't even born in 1974 when he was elected to his first of two terms as governor - potential political rivals will put his four decades of public service under their microscopes.

The former governor, secretary of state and mayor of Oakland has had his hands in hundreds of bills and issues - many enacted in a very different political universe.

Example: Brown signed the definition-of-marriage bill in 1977, when the gay rights movement was in its infancy and San Francisco SupervisorHarvey Milk had just been elected to office.

Newsom may challenge

Still, he could be challenged on the issue by San Francisco Mayor Gavin Newsom, who has strong backing among gays and lesbians for allowing the state's first same-sex marriages at San Francisco City Hall in 2004.

Today, Brown downplays the matter, insisting the bill was hardly controversial at the time, largely ignored by the press - and passed the Assembly on a lopsided 68-2 vote.

But Chronicle stories at the time described it as the first "vote to ban gay marriage" and quoted supporters as claiming it provided a key marker on morality issues.

Nestande said he was originally moved to write it when he got a call from the clerk of Orange County, who told him of a then-unheard-of event. "He said, 'I got two males here who want to pull a marriage license' ... and I said, 'That doesn't make sense,' " the former GOP lawmaker recalled.

The lawmaker was told "the code says marriage is between two persons," Nestande said. "I said that it must mean male and female ... and put in a bill to clarify the issue."

But some Democrats did raise their voices against the legislation - like then-Assemblyman Willie Brown, who later became speaker of the Assembly and even later mayor of San Francisco. He insisted that instead of adding the phrase "man and woman" to the law, the word "marriage" should be struck and substituted with "a contract between people," the record shows. But that didn't happen.

And then-San Francisco Sen. Milton Marks called it an unnecessary and unfair intrusion into the private lives of California citizens.

But Nestande says he doesn't fault Brown for signing the measure because it reflected the widely held and virtually unchallenged view at the time: that marriage between a man and a woman was as American as "ice cream and apple pie."

'Brave step'

Jo Kenney, a lesbian and Democratic activist who heads Kenney Consulting, a nonprofit firm in San Jose, said Brown is likely to be judged more on his current actions as attorney general to undo Prop. 8.

"I think he's viewed positively in the (lesbian, gay, bisexual and transgender) community," she said. "People think it was a brave step for him because usually, an AG has to take the position of the state - and he's going against it."

So many people, she said, might forgive the past - and focus on the future.

"I'm of the opinion we have to give people space to grow," she said. "That's what being human is all about."

"Jerry Brown has seen the light. He wouldn't sign that bill today," agreed Gloria Nieto, who married Kenney in California this year before the passage of Prop. 8. "It's a whole different day."

Said Kuehl: "Even if Jerry Brown, at the time, believed that marriage was between man and woman, it's now 30 years later. And there are millions of people who have changed their minds about this."

"I wouldn't think that it was anything but good news that a man who is the attorney general has changed his mind," she said. "It's excellent that he did."